Relationships between Branches - Parliamentary Sovereignty

Question 1

What is Legal sovereignty?

Answer 1

Legal sovereignty is defined as the person/body who makes the laws and whose laws are the final ones - they are recognised by the courts and are enforced by the executive.

Question 2

What is Political sovereignty?

Answer 2

This refers to the person/body who makes the decisions in reality. This ignores where the legal sovereignty may actually lie and concentrates on who can realistically exercise power within the state… this explores what is politically possible for them to do.

Question 3

What is Popular sovereignty?

Answer 3

This refers to the Power to the People - elections, for example, cannot be abolished because it would be political suicide. The people ultimately hold the power.

Question 4

Five facts about Parliamentary sovereignty

Answer 4

1. Parliamentary sovereignty is a form of legal sovereignty. Parliament can make or remove any laws.
2. Parliament cannot bind its successor- the current government could repeal the HRA or the Fixed Terms Parliament Act if they really wanted to.
3. No other institution can challenge an act of Parliament.
4. Power that has been transferred either up or down CAN be reversed… devolution can be repealed etc.
5. The lack of a codified constitution in the UK, there is no higher authority than Parliament.

Question 5

LOCATION OF SOVEREIGNTY

Devolution

POSITIVE:
Reserved matters

Answer 5

Devolution Acts state that Parliament retains the right to make laws on any matter - 1998 Scotland Act had restraints on reserved matters e.g., statutes such as the HRA and ECHR and immigration and defence.

Question 6

LOCATION OF SOVEREIGNTY

Devolution

NEGATIVE:
Devolution is not one off

Answer 6

Devolution is not a one-off event because subsequent acts devolved more powers - If we take Wales:

1998: first Wales Act established the National Assembly of Wales.
2006: established formal separation between Welsh gov and Assembly.

2011 referendum… 2014 Wales Act - formally changed the Welsh Assembly Government to Welsh Government.

2017: last Wales Act - further powers regarding franchising. This also cemented the Welsh Parliament and Welsh government were permanent constitutional features.

Question 7

LOCATION OF SOVEREIGNTY

Devolution

POSITIVE:
UK is still a unitary state

Answer 7

Devolution has not altered the legal sovereignty of Parliament - the UK still remains a unitary state. For example, in 2017, Stormont collapsed over disagreements between DUP and Sin Fein, this was triggered over disagreements following DUP’s handling of the green energy scandal. Unless the DUP supported an Irish Language Act, Sin Fein refused to go back into the power sharing agreement. They both accepted a draft deal in Jan 2020 and so power was somewhat restored.

Question 8

LOCATION OF SOVEREIGNTY

Devolution

NEGATIVE:
Policy differences

Answer 8

Differential Policy: Scottish University students do not have to pay university fees. 16-year-old can vote in elections in Scotland since 2015 when the voting age was lowered. This was in place temporarily in the 2014 Independence Referendum. From 2015 onwards, 16- and 17-year-old could vote in Scottish Parliament Elections.

Question 9

LOCATION OF SOVEREIGNTY

HRA

POSITIVE:
UK Supreme Court cannot strike down laws

Answer 9

Al Rawi Case 2011 - led to the reform that prevented secret evidence being used in court.

The court rejected the claim that the UK security services had to give evidence to the judge in secret. Parliament combatted this with the Justice and Security Act 2013 where secret courts were established and closed material procedures could be used.

Question 10

LOCATION OF SOVEREIGNTY

HRA

POSITIVE:
Refusal to amend laws

Answer 10

John Hirst Case 2001-2005 - in 2004, the Chamber of the ECHR ruled that there had been a violation of John Hirst’s human rights under article 3 of the First Protocol of the ECHR. The British govt tried to introduce legislation to give prisoners the right to vote, but Parliament rejected this and so they were sovereign.

Question 11

LOCATION OF SOVEREIGNTY

HRA

NEGATIVE:
Incompatibility statements

Answer 11

In 2019, a statement of incompatibility was issued in R v Secretary of State for the Home Department as the right to rent scheme (gave landlords the authority to check the immigration status of lodgings and deny renting to those who cannot prove they have a right to live in the rented property). This was deemed incompatible with article 14 of the ECHR which states there should be NO discrimination based on race, sex, sexuality, language, or religion.

Question 12

LOCATION OF SOVEREIGNTY

HRA

NEGATIVE:
Judges must interpret all UK laws to see their compatibility with the ECHR.

Answer 12

2004 Belmarsh Case - statement of incompatibility was issued following David Blunkett’s unlawful detention of 16 Muslims at Belmarsh without trial. They neglected Article 14.

Question 13

LOCATION OF SOVEREIGNTY

Referendums

POSITIVE:
Popular sovereignty is not absolute.

Answer 13

Referendums are not legally binding because Parliament can choose to not listen to a referendum result. Lady Brenda Hale stated that the Brexit referendum was not legally binding but rather advisory. Further, 114 MPs voted against invoking Article 50, whilst 498 MPs voted for. 13 Conservative peers voted against the government.

Question 14

LOCATION OF SOVEREINGTY

Referendums

NEGATIVE:
People hold the ultimate power in democracies

Answer 14

Parliament has to be sensitive to the wishes of the electorate.

Iraq War protests 2003 - gathered one million people in London alone.

Policing, Crime, Sentencing and Courts Bill 2021 - contributed to the Bristol riots where 20 officers were injured. This was an aggravated response to the government’s lack of empathy over Sarah Everard’s death which sparked national mourning.

Question 15

LOCATION OF SOVEREIGNTY

Referendums

NEGATIVE:
Brexit referendum saw popular sovereignty triumph

Answer 15

48% voted Remain, 52% voted Leave. The entire process took from 2016, to Jan 31st 2020, when England officially left the EU.

This is a tyranny of the majority.

Question 16

LOCATION OF SOVEREIGNTY

Executive Dominance

POSITIVE:
Executive dominance is never a constant thing

Answer 16

This dominance is dependent on the majority of the party, the populism, the wider context in which the competition is taking place etc.

Following the 2017 election, the Conservative 318 seats needed the DUP’s 10 MPs to make a majority and so the Executive was weak. Now, take Johnson’s 80 seat majority, you can say the Executive is dominant.

Question 17

LOCATION OF SOVEREIGNTY

Executive Dominance

POSITIVE:
Triggering Article 50 shows the Executive power limit.

Answer 17

The European Union Withdrawal Act 2019 was an act of Parliament that made provisions for extensions to the period defined under Article 50 of the Treaty of the EU related to the UK’s withdrawal. This was repulsed by the 2020 EU Withdrawal Agreement Act.

Question 18

LOCATION OF SOVEREIGNTY

Executive Dominance

NEGATIVE:
Elective dictatorship

Answer 18

Tony Blair didn’t lose a vote between 1997 and 2005. Blair had a staggering 179 seat overall majority in the Commons in the 1997 general election.

Question 19

LOCATION OF SOVEREIGNTY

Executive Dominance

NEGATIVE:
Fusion of powers between Executive and Legislative

Answer 19

Select Commission makes up the selection of most of the senior judges in the UK and decide the membership of the Supreme Court. the 5-member commission’s nominations are passed on to the Justice Secretary for approval…. after the agreement, the pM asks the monarch to make the appointment.